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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Lumsdon & Ors, R (on the application of) v Legal Services Board & Ors [2014] EWCA Civ 1276 (07 October 2014) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2014/1276.html Cite as: [2014] WLR(D) 413, [2014] EWCA Civ 1276 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION, DIVISIONAL COURT
SIR BRIAN LEVESON P, BEAN AND CRANSTON JJ
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE FULFORD
and
LADY JUSTICE SHARP
____________________
THE QUEEN ON THE APPLICATION OF (1) KATHERINE ![]() ![]() (2) RUFUS TAYLOR (3) DAVID HOWKER QC (4) CHRISTOPHER HEWERTSON |
Appellants |
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- and – |
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LEGAL SERVICES BOARD - and – GENERAL COUNCIL OF THE BAR (acting by the BAR STANDARDS BOARD) SOLICITORS REGULATION AUTHORITY ILEX PROFESSIONAL STANDARDS LAW SOCIETY OF ENGLAND AND WALES |
Respondent Interested Parties |
____________________
(Transcript of the Handed Down Judgment of
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Nigel Giffin QC and Duncan Sinclair (instructed by Field Fisher Waterhouse) for the Respondent.
Timothy Dutton QC and Tetyana Nesterchuk (instructed by Bevan Brittan LLP) for the First Interested Party (the BSB).
Hearing date: 16, 17 & 18 July 2014
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Crown Copyright ©
Master of the Rolls: this is the judgment of the court.
The Legal Services Act
"(a) protecting and promoting the public interest;
(b) supporting the constitutional principle of the rule of law;
(c) improving access to justice;
(d) protecting and promoting the interests of consumers;
(e) promoting competition in the provision of services within subsection (2);
(f) encouraging an independent, strong, diverse and effective legal profession;
(g) increasing public understanding of the citizen's legal rights and duties;
(h) promoting and maintaining adherence to the professional principles."
"(a) that authorised persons should act with independence and integrity,
(b) that authorised persons should maintain proper standards of work,
(c) that authorised persons should act in the best interests of their clients,
(d) that persons who exercise before any court a right of audience, or conduct litigation in relation to proceedings in any court, by virtue of being authorised persons should comply with their duty to the court to act with independence in the interests of justice, and
(e) that the affairs of clients should be kept confidential.
(4) In this section "authorised persons" means authorised persons in relation to activities which are reserved legal activities [which are defined at s12(1) as including exercising rights of audience]."
"(1) In discharging its functions, the Board must comply with the requirements of this section.
(2) The Board must, so far as is reasonably practicable, act in a way –
(a) which is compatible with the regulatory objectives, and
(b) which the Board considers most appropriate for the purpose of meeting those objectives.
(3) The Board must have regard to –
(a) the principles under which regulatory activities should be transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed, and
(b) any other principle appearing to it to represent the best regulatory practice."
"The approved regulator must, so far as is reasonably practicable, act in a way—
(a) which is compatible with the regulatory objectives, and
(b) which the approved regulator considers most appropriate for the purpose of meeting those objectives."
(1) After considering –
(a) the application and any accompanying material,
(b) any other information provided by the approved regulator,
(c) any advice obtained under paragraph 22,
(d) any representations duly made under paragraph 23, and
(e) any other information which the Board considers relevant to the application,
the Board must decide whether to grant the application.
(2) The Board may grant the application in whole or in part.
(3) The Board may refuse the application only if it is satisfied that –
(a) granting the application would be prejudicial to the regulatory objectives,
(b) granting the application would be contrary to any provision made by or by virtue of this Act or any other enactment or would result in any of the designation requirements ceasing to be satisfied in relation to the approved regulator,
(c) granting the application would be contrary to the public interest…
The history of QASA
The details of QASA
The Decision
"35. The Board considered whether there was a significant risk of conflict between advocacy assessment and the needs of clients and concluded that there was not. Advocates have a duty to the Court to act with independence in the interests of justice. Equally, they are aware of their duties to their client under the regulations of their respective approved regulators. There is no evidence to suggest that by implementing the Scheme, advocates will start to act without appropriate independence.
36. The Board also considered whether the Scheme posed a challenge to judicial independence and concluded that this was a very low level risk. Our assessment is that there is a low risk that judicial independence would be challenged by the scheme arrangements. The independence of the judiciary is one of the core values of our justice system. Judicial independence is also governed by relevant legislation (such as the Constitutional Reform Act 2005) and will remain the subject to that legislation's provisions. Additional safeguards in place include the Guide to Judicial Conduct which was updated in March 2013 and this includes provisions relating to judicial independence and impartiality. The Board also took into consideration that the Scheme introduces transparent and consistent criteria for advocates to be judged against and that judges will receive training on how to apply these criteria. It could be argued that the Scheme will be more robust and transparent than what happens under current arrangements, where judges may provide feedback informally on the performance of advocates via the circuits to heads of chambers rather than via the approved regulator."
THE GROUNDS OF CHALLENGE
THE INDEPENDENCE OF THE ADVOCATE
"51 … It is fundamental to a just and fair judicial system that there be available to a litigant (criminal or civil), in substantial cases, competent and independent legal representation. The duty of the advocate is with proper competence to represent his lay client and promote and protect fearlessly and by all proper and lawful means his lay client's best interests. This is a duty which the advocate owes to his client but it is also in the public interest that the duty should be performed. The judicial system exists to administer justice and it is integral to such a system that it provide within a society a means by which rights, obligations and liabilities can be recognised and given effect to in accordance with the law and disputes be justly (and efficiently) resolved. The role of the independent professional advocate is central to achieving this outcome, particularly where the judicial system uses adversarial procedures.
52. It follows that the willingness of professional advocates to represent litigants should not be undermined either by creating conflicts of interest or by exposing the advocates to pressures which will tend to deter them from representing certain clients or from doing so effectively. In England the professional rule that a barrister must be prepared to represent any client within his field of practice and competence and the principles of professional independence underwrite in a manner too often taken for granted this constitutional safeguard. Unpopular and seemingly unmeritorious litigants must be capable of being represented without the advocate being penalised or harassed whether by the Executive, the Judiciary or by anyone else. Similarly, situations must be avoided where the advocate's conduct of a case is influenced not by his duty to his client but by concerns about his own self-interest."
The cumulative effect of the ten elements
Failure properly to consider whether QASA would expose advocates to pressures
"The SRA, BSB and IPS do not consider that the proposed regulatory changes will negatively impact on any of the protected characteristics. Each regulator has undertaken equality impact assessments, which are attached at Annex D. No human rights issues are expected from the regulatory changes or implementation of the scheme."
"The risk generated by QASA is that, in order to further their own career goals (and the authors of QASA extol its virtue in having created a career ladder), advocates will seek to curry favour or avoid confrontation with a Judge in a hearing of which they have conduct. In order to please or appease Judges (or simply avoid antagonising them) advocates will not advance (or do so with full vigour) arguments their clients may wish to advance that might prove unpopular.
Such concerns are amplified by the fact that:
(a) the process of approval/assessment starts in advance of a trial, by the advocate submitting the relevant forms to the judge/assessor. An advocate cannot seek a reference after trial (conflict having been avoided) at some remove from it (where an advocate's performance might be more objectively assessed);
(b) the rules require immediate judicial evaluation for those wishing to conduct trials at Levels 2-4 in the first effective trials at the applicable level;
(c) some advocates on some circuits inevitably find themselves appearing in front of the same Judges in the same trial centres, with the result that they have a very limited pool of potential referees and will thus know who their likely QASA judicial evaluators will be when their time for evaluation approaches; and
(d) QASA is in no way optional."
"Our assessment is that there is not a significant risk of competing interests, namely between the advocate's duty to their client and striving to obtain a favourable judicial evaluation leading to a lack of independence on the part of the advocate.
We have also taken into consideration that the scheme introduces transparent criteria for advocates to be judged against and that judges will receive training on how to apply these criteria. It could be argued that the scheme will be more robust and transparent than what happens under current arrangements, where judges may feedback informally on the performance of advocates via the circuits to heads of chambers rather than via the regulator.
Advocates have a duty to the Court and to act with independence in the interests of justice. Equally, they are aware of their duties to the client. These are professional individuals and there is no evidence to suggest that by implementing QASA, they will start to act without appropriate independence. Furthermore, the regulatory arrangements of each AR stipulate that regulated persons must act in the interests of the client and with independence."
"87. As is set out in the decision notice, the LSB was not, and still is not, aware of any actual evidence to support the assertion that the Scheme introduces a risk of eroding the independence of the advocate. Indeed, were an advocate to compromise his independence by failing to act in the best interests of his client, then this would be the type of conduct that QASA would be seeking to identify and curtail within the profession. The LSB works on the assumption that professional advocates will seek to conduct themselves in accordance with their duties and not seek to gain personally at the expense of the best interests of their client.
88. The Claimants' contention takes as its starting point the presumption that many advocates are of sufficiently poor quality and/or lack a sufficient degree of professionalism to be unable to act without their independence being undermined – either by creating tempting conflicts of interest or by exposing themselves to pressures which may deter them from representing a client at all or representing the best interests of that client (instead choosing to put self-interest first). Not only does this seem to be a totally unevidenced slur on many of their professional colleagues, but it seems to contradict the arguments advanced elsewhere that QASA is disproportionate as there is no evidence that a large number of advocates are of a poor quality and are providing a poor service to their clients. Both of these extreme positions strike me as untenable: the existence of a robust scheme should actually increase the likelihood of unethical conduct being detected, rather than perpetrated, whilst also giving a more strongly based assurance about the performance standards of the majority of advocates.
89. The suggestions that an advocate may be susceptible to having their independence compromised by an overriding desire to succeed with QASA accreditation is to my mind no different to a situation where an individual chooses one course of action over another, possibly due to a financial incentive – an example would be an advocate intentionally not advising his/her client to plead guilty and instead entering a not guilty plea, so as to ensure the case proceeds to a full trial from which the advocate will receive substantially more financial benefit. In these situations, we trust advocates to put their financial interests to one side and act ethically and professionally. It is ultimately a matter of choice for individual advocates, but I believe (as did the Board) that the majority of criminal advocates will choose to act professionally and in accordance with their code of conduct.
90. Linked to the claimants' concerns about an advocate's independence is the issue of whether a client should be informed that the advocate representing him/her is being assessed and/or whether the client's consent should be obtained. This was a decision to be made by JAG when designing the Scheme. As I have set out before, it was not the LSB's role to seek to determine the fine detail of the Scheme's operation in areas which were not likely to be determinative in our final decisions. We were content that the BSB had considered the issue and was satisfied that the issue of disclosing this information to a client and potentially obtaining client consent was not a problem.
91. My understanding is that the possibility of judges' views of the performance of advocates appearing before them having an impact upon those advocates is by no means new. For example, I understand that judges of the High Court originally had the power to discipline barristers, a function which they have, since 1986, resolved to exercise through the Council of the Inns of Court ("COIC"). Historically, following a hearing, judges have also made a head of chambers (or a senior partner of a firm in relation to solicitor advocates) aware about poor advocacy of those appearing before them.
92. Another example of a judge acting in an evaluation role is in relation to the Bar Quality Advisory Panel (BQAP) – the Bar Council's own quality assurance panel which relies on judicial references to alert the Bar Council to an advocate in need of some support for his/her advocacy. According to the Bar Council website, BQAP is a non-disciplinary body that will receive referrals about a member of the Bar's performance from judges, instructing solicitors and barristers on the same legal team. The panel will then be able to advise the member of the Bar concerned about his or her work, and how to improve things for the future. Judges also regularly provide references for those applying for Queen's Counsel ("QC") status or for other appointments, such as to the Treasury and CPS panels of counsel."
Failure to consider whether QASA would give rise to a perceived threat to the independence of advocates
"There is no question whatever as to the integrity and fair-mindedness with which the Lord Advocate has acted. However, what I have to consider is whether the basis on which the temporary sheriff holds office is truly independent, that is independent of the executive, whether it presents an appearance of such independence, and whether and to what extent the lack of the former gives rise to the appearance of lack of impartiality."
"Any judge (for convenience, we shall in this judgment use the term "judge" to embrace every judicial decision-maker, whether judge, lay justice or juror) who allows any judicial decision to be influenced by partiality or prejudice deprives the litigant of the important right to which we have referred and violates one of the most fundamental principles underlying the administration of justice. Where in any particular case the existence of such partiality or prejudice is actually shown, the litigant has irresistible grounds for objecting to the trial of the case by that judge (if the objection is made before the hearing) or for applying to set aside any judgment given. Such objections and applications based on what, in the case law, is called "actual bias" are very rare, partly (as we trust) because the existence of actual bias is very rare, but partly for other reasons also. The proof of actual bias is very difficult, because the law does not countenance the questioning of a judge about extraneous influences affecting his mind; and the policy of the common law is to protect litigants who can discharge the lesser burden of showing a real danger of bias without requiring them to show that such bias actually exists".
"It is evident that lawyers, while defending their clients in court, particularly in the context of adversarial criminal trials, can find themselves in the delicate situation where they have to decide whether or not they should object to or complain about the conduct of the court, keeping in mind their client's best interests. The imposition of a custodial sentence, would inevitably, by its very nature, have a "chilling effect", not only on the particular lawyer concerned but on the profession of lawyers as a whole. They might for instance feel constrained in their choice of pleadings, procedural motions and the like during proceedings before the courts, possibly to the potential detriment of their client's case. For the public to have confidence in the administration of justice they must have confidence in the ability of the legal profession to provide effective representation. The imposition of a prison sentence on defence Counsel can in certain circumstances have implications not only for the lawyer's rights under Art.10 but also the fair trial rights of the client under Art.6 of the Convention. It follows that any "chilling effect" is an important factor to be considered in striking the appropriate balance between courts and lawyers in the context of an effective administration of justice."
"It has not so far been suggested that the clients of advocates who have applied or plan to apply for any of these appointments may be disadvantaged because the advocate is likely to "pull his punches" when appearing before a judge who is a potential consultee or referee; nor that a client could reasonably perceive that this is the case. On the contrary: any but the most unreasonable client, if made aware of this aspect of the working relationship between the advocate and the judge, would be more likely to think that the advocate would make a special effort to be on top of the case and impress the judge."
DOES QASA UNDERMINE THE INDEPENDENCE OF THE JUDICIARY?
"The Board also considered whether the Scheme posed a challenge to judicial independence and concluded that this was a very low level risk. Our assessment is that there is a low risk that judicial independence would be challenged by the scheme arrangements. The independence of the judiciary is one of the core values of our justice system. Judicial independence is also governed by relevant legislation (such as the Constitutional Reform Act 2005) and will remain the subject to that legislation's provisions. Additional safeguards in place include the Guide to Judicial Conduct which was updated in March 2013 and this includes provisions relating to judicial independence and impartiality. The Board also took into consideration that the Scheme introduces transparent and consistent criteria for advocates to be judged against and that judges will receive training on how to apply these criteria. It could be argued that the Scheme will be more robust and transparent than what happens under current arrangements, where judges may provide feedback informally on the performance of advocates via the circuits to heads of chambers rather than via the approved regulator."
"Judges, and indeed all other consultees, who give references to the Judicial Appointments Commission are protected by the statutory duty of confidentiality laid down in section 139 of the Constitutional Reform Act 2005. In respect of all other references, and complaints by judges to regulators, the risk has always been there. We have not been aware of any case in which such a claim has been made. The risk appears to us very slight because of the defences available, such as qualified privilege in the case of defamation. It cannot be dismissed out of hand; but it is part of a judge's job. As to costs, we can predict with confidence that if any judge were to be sued in respect of his completion of a CAEF, and were left to fund his defence personally, the Scheme would come to an abrupt end. The perceived threat to judicial independence is so conjectural as not to be real."
IS THERE AN EFFECTIVE RIGHT OF APPEAL?
"You must be assessed in your first effective criminal trials at your level and submit the prescribed number of completed criminal advocacy evaluation forms confirming that you are competent in accordance with the competence framework detailed in the QASA Handbook."
"You may not appeal against the content of an individual assessment conducted by a judge and recorded through a criminal advocacy evaluation form".
"85. Although BSB Rule 12.4 is not happily worded, we consider that it should be given a purposive rather than a literal construction. A valid submission requires CAEFs for the two out of the advocate's first three trials to be submitted to the approved regulator. If the BSB is satisfied that two of these have been properly completed, give no cause for concern and satisfy the requirements for assessing the advocate as Competent, the advocate will be granted full accreditation at the relevant Level. But it is open to a barrister to submit that, notwithstanding the failure to obtain two Competent evaluations, the BSB should nevertheless grant full accreditation outright (though this would no doubt be exceptional), or that, before reaching a decision on the application, the BSB should exercise its discretion under Rule 11 to appoint an independent assessor to conduct an assessment of the barrister's competence to conduct criminal advocacy at the appropriate level.
86. If the BSB decides to reject the application for full accreditation the advocate then has the right of appeal. We regard the wide powers given to the adjudicator as a real safeguard against the possibility of an injustice being done to the advocate by one or two maverick judges. For example, if the BSB has accepted the adverse evaluations at face value and declined to appoint an independent assessor, it would be open to the adjudicator in an appropriate case to remit the decision to the BSB on terms that they should appoint an independent assessor to review the advocate's competence and then reconsider the application in the light of the assessor's report. We are satisfied that the scheme has adequate appeal rights, and that these meet Article 6 of the European Convention of Human Rights, if (as to which we reach no concluded view) that article is engaged. "
THE STANDARD OF REVIEW: THE DOMESTIC LAW DIMENSION
IS QASA UNLAWFUL ACCORDING TO DOMESTIC LAW?
PROPORTIONALITY: THE EU LAW DIMENSION
Introduction
"The Board considers that, on balance, the applicants have responded to issues raised during consultation and have adjusted the Scheme to make it proportionate and targeted without undermining its potential effectiveness".
"130. If we are wrong in any of this, and proportionality applies, the issue which arises is how the QASA scheme measures up to the test. In Bank Mellat v Her Majesty's Treasury (No 2) [2013] UKSC 39; [2013] 3 WLR 179, Lord Reed (with whom Lord Sumption agreed on this point: [20]) said that the principle did not entitle a court simply to substitute its views for those of the decision maker, although the degree of respect accorded it would vary: [71]. Both Lords Sumption and Reed adopted the well known approach that the court would examine the case advanced in defence of a measure to determine (i) whether its objective is sufficiently important to justify the limitation of a fundamental right; (ii) whether it is rationally connected to the objective; (iii) whether a less intrusive measure could have been used without unacceptably compromising the objective; and (iv) whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community: [20], [70][76].
131. In our view the objective of competent advocacy is important and the scheme is justified by the evidence of sub-standard advocacy. There are obvious risks posed both to individuals and to the criminal justice system as evidenced from the time of the Ipsos MORI survey in 2006, through the CPS review in 2009 to the large scale survey reported by ORC International in 2012. None of these were as comprehensive and as complete as one would conduct in an ideal world, but they produced significant evidence of concerns about advocacy standards from a range of sources, including the views of the judiciary.
132. It was only to be expected that in the development of QASA scheme different, indeed sometimes radically different, views were taken about its desirability and design by the BSB, the SRA and other regulators, by advocates and their representative bodies, and by judges. None of that goes to the irrationality of the scheme as it relates to the objective of tackling incompetent advocacy. The ORC International report highlighted that matters such as public funding limits could make matters worse. As we explained earlier in the judgment, after the final consultation in 2012 the BSB considered whether a less intrusive scheme was still possible, focusing on low performers, rather than all barristers, but ultimately it decided that the QASA scheme was the best way forward. We also note in this regard that the cost to advocates of participating in QASA will be in relative terms very small, that judges will have to be trained before conducting assessments and that the scheme will be reviewed within a short period. It may well be that some advocates will not make the grade under the scheme and, as we have explained, will be confined to a lower level of work. But we cannot regard the balance struck in the light of all these factors as being in any way disproportionate."
The claimants' criticisms
"Having said that, however, we are prepared to trespass into the area that is for them to determine by making four suggestions which might have the benefit of improving the scheme and reducing the concerns that the Claimants have advanced (which we accept are entirely genuine): whether these ideas are adopted is, of course, for the LSB and the regulators. First, it would be sensible for the form to require the advocate to identify (a) when he or she was first instructed (which would not offend legal professional privilege) and (b) whether advice on evidence was provided: in both cases, that would inform the judge as to the background against which any assessment of competence is to be made. Secondly, the judge should be permitted to decline to complete the form if he or she believes, because of the circumstances, that it would not be fair to do so: in that event, the assessment would fall to be made in the next trial. Third, in the event of a third judicial assessment becoming necessary, it should be of the first trial conducted by the advocate in front of a judge other than either of the judges that conducted the first two assessments. Finally, during the course of this judgment, we have identified some areas of ambiguity in the written material. QASA goes to the heart of the practice development of criminal advocates and every step should be taken to ensure that the scheme is completely clear to all called upon to comply with it. "
The November 2012 proposal
"5.
- It addresses the concerns raised in consultation but maintains all of the fundamental components of the full scheme…
- All advocates will be subject to some proactive evaluation of competence. However, after the initial assessment, any further regulatory action is targeted at those whom the evidence identifies as posing the greatest risk, in that additional assessments and other requirements such as remedial training are targeted at those whose initial assessment is negative. This approach is proportionate and is consistent with the wider expectations of risk based on supervision and enforcement placed upon regulators by the LSB's Regulatory Standards Framework. It avoids placing a disproportionate burden on advocates or members of the judiciary, which a blanket requirement for multiple assessments on all advocates risks doing".
"No other specific issues of proportionality appear to have been raised but it is hard to see how the scheme could be considered disproportionate when considered against the risks to the regulatory objectives and in particular the public interest in securing confidence in the justice system and the delivery of the rule of law. From a very practical perspective, the time taken in approaching a judge to ensure that evaluation is undertaken and the necessary paperwork properly returned is not at all burdensome when set against the normal management of paperwork and documents in a case of any degree of complexity."
"It is also difficult to see how a scheme where the penalty of poor performance is to restrict an advocate to a level of work in which they would have been demonstrated as competent can be disproportionate in its impact on the individual. That an advocate who cannot demonstrate their competence across a set of agreed areas should be removed from practice at that level (provided that proper remedial action has been tried and failed) is the very essence of the public interest and the regulatory regime set up by the Legal Services Act 2007. The delivery of a quality assurance scheme must be balanced in favour of public interest rather than the professional interest alone. "
"30. Secondly, as more solicitor advocates undertake criminal work, there is a need to demonstrate in a consistent way that the two different routes to qualifying as an advocate with higher rights in criminal courts lead to identical standards of advocacy being pursued and common assessment of the standard of advocacy being in place. Inconsistency could undermine public confidence in the administration of justice or the rule of law.
31. Thirdly, common standards are required in order to promote effective competition, which is a regulatory objective in itself……."
Proportionality in the Decision itself
"assessment of proportionality is a routine part of considering all rule change applications, through the assessment of proposed alterations against the better regulation principles. Proportionality was explicitly addressed in the draft decision notice which was provided to the Board as an annex to the main paper."
Discussion
OVERALL CONCLUSION
"The details of the Scheme put forward by JAG in 2013
39. The Scheme classifies criminal cases at four Levels. Level 1 comprises all Magistrates' Court and Youth Court work, together with appeals and committals for sentencing to the Crown Court, bail applications and preliminary hearings under Section 51 of the Crime and Disorder Act 1998. Level 2 is the first level in the Crown Court: it includes all offences triable either way where the magistrates accepted jurisdiction but the defendant elected to go for trial in the Crown Court, as well as "straightforward Crown Court cases" such as burglary, lesser offences of theft, and assaults contrary to Section 20 or Section 47 of the Offences Against the Person Act 1861. Level 3 includes more complex cases such as possession of drugs with intent to supply and more serious assaults. Level 4 is reserved for the most complex Crown Court cases. There are some entries where the classification of the case may be somewhat subjective: it is not easy, for example, to see the difference between "more serious sexual offences" under Level 3 and "serious sexual offences" under Level 4.
40. An advocate is permitted to undertake hearings short of conducting the trial, including guilty pleas, in cases at one level above his own accredited level provided that he believes he is competent to undertake them. In cases in which there is both a leading and a junior advocate, the starting point is that the junior should be no more than one level below the leader. There are special provisions at Level 2 for advocates to register for Crown Court work other than trials. We have already noted that these were the subject of a good deal of controversy between the professional bodies in the drafting stages of the Scheme, but we are not concerned with them in this case.
41. The QASA Handbook contains detailed provisions about registration at the start of the scheme and also for re-accreditation. In this case we are dealing only with the former. Advocates are entitled to register at level 1 of the Scheme by virtue of having completed the educational and training requirements to enter their respective professions. Advocates wishing to be graded at level 2 or higher will have to register for provisional accreditation at an appropriate level at the start of the scheme, the only exception being recently appointed QCs who will then register for full accreditation.
42. Registration at Level 1 is obtained simply by completion of the education and training requirements for entry into the relevant profession. At Level 2, the procedure both for barristers and for solicitors with higher rights of audience is to register and thus obtain provisional accreditation, valid for a maximum of two years. The advocate must then be assessed in a minimum of two and a maximum of three of his first three effective trials at Level 2. If the advocate is assessed as competent in two of these three trials the appropriate regulator will grant full accreditation at Level 2 valid for five years. There are similar provisions for initial registration at Level 3 and at Level 4.
43. The scheme also provides for advocates to progress upwards through the levels. An advocate wishing to move upwards after obtaining full accreditation at Level 2 must obtain a minimum of two and a maximum of three evaluations at Level 2 in consecutive effective trials over a 12 month period. These will have to show that the advocate is "Very Competent" at level 2 in order to obtain provisional accreditation at Level 3 which itself is valid for a maximum of 12 months. He must then obtain a minimum of two and a maximum of three evaluations of his first consecutive effective trials at Level 3, assessing him as "Competent" at Level 3 to obtain full accreditation at that level, again valid for five years. An identical system operates for progression from Level 3 to Level 4. The provisions for progression are not under attack in this claim.
44. There are nine Standards against which the Judge completing the form must assess the advocate as Competent or Not Competent (or, in the case of some Standards, may say that it is not possible for him to give an evaluation: for example, if the defendant is acquitted the advocate will not have to assist the judge on sentence). There are several pages of detailed performance indicators underlying the various Standards at each of the four levels, to assist the judge in deciding the issue of competence. The Standards are as follows:—
(1) Has demonstrated the appropriate level of knowledge, experience and skill required for the Level;
(2) Was properly prepared;
(3) Presented clear and succinct written and oral submissions;
(4) Conducted focussed questioning;
(5) Was professional at all times and sensitive to equality and diversity principles;
(6) Provided a proper contribution to case management;
(7) Handled vulnerable, unco-operative and expert witnesses appropriately;
(8) Understood and assisted court on sentencing;
(9) Assisted client(s) in decision-making.
45. In order to obtain an overall mark of Competent at Levels 2 or 3, the advocate must be marked Competent in Standard 1 and in at least two of the "core standards" 2, 3 and 4; if assessed against Standard 5, he or she must be marked as Competent; and must only be marked as Not Competent in a maximum of two out of Standards 6 to 9. As to the two Competent evaluations the advocate must not be marked as Not Competent against the same Standard more than once.
46. It should also be observed that the Criminal Advocacy Evaluation Form ("CAEF") which the judge must complete has a page for comments headed with this rubric: "Please provide reasons for your evaluation, with reference to the specific Performance Indicators, particularly if you have selected either "Not Possible to Evaluate" or "Not Competent" for any of the competency standards identified on page 1". This reflects the fact that as a matter of both common sense and elementary fairness an adverse evaluation requires more detailed reasoning than one which states that the advocate is competent.
47. The decision to grant or refuse full accreditation at any of Levels 2, 3 or 4 is for the approved regulator, not for the judges conducting the assessment. If the decision is to refuse accreditation then (subject to any successful appeal) the advocate must "drop down" to the next level and seek to work his way up again by using the provisions for upward progression. The Scheme does not prescribe that a minimum time period must elapse before the advocate can attempt to progress back to the higher level.
48. That is not, however, to say that there is a lacuna in the scheme. As Ms Chloe Carpenter on behalf of the SRA pointed out, paragraph 2.22 of the QASA Handbook states that "advocates must reach a reasoned decision as to the level at which they register and be able to justify their decision if asked to do so by their regulator". Thus, an advocate who had just failed to obtain full accreditation for Level 2 trial work would need to have a reasoned basis for immediately reapplying for Level 2 without gaining any more experience or training first. Rule 19 of the SRA Quality Assurance Scheme for Advocates (Crime) Regulations 2013 allows the SRA to require an advocate to take specific steps before the application is determined. If, for example, an advocate failed the Level 2 application because of weakness in cross-examination, it would be open to the SRA to require the advocate to undertake some training in cross-examination before re-applying for additional accreditation for Level 2 trial work.
49. Similarly, the BSB QASA Rules make provision for barristers whose application for full accreditation at Level 3 or Level 4 is rejected to be returned automatically to full accreditation at the next level down and then to be permitted to make an application to progress upwards again. There is, by an unintentional omission, no such explicit provision in respect of failure at Level 2, the consequent return or demotion of the barrister to Level 1 and a new application by the barrister for provisional accreditation at Level 2. But we accept the submission of Mr Timothy Dutton QC, for the BSB, that when the QASA Handbook and the BSB QASA rules are viewed together, they lead to the same result as that provided for in the SRA regulations. There is no minimum time which must elapse between a decision refusing full accreditation at Level 2 and a further application by the barrister for provisional accreditation at that level. But the barrister, like the solicitor in the same position, is required by paragraph 2.22 of the Handbook to reach a reasoned decision as to the level at which he registers and be able to justify that decision. The BSB retains the discretion to refuse provisional accreditation at Level 2 to barristers who have recently failed a Level 2 assessment unless they can justify the application by reference to additional training.
50. The effects of a refusal of full accreditation are most drastic at Level 2. At the higher levels they seem to us to reproduce the traditional approach of instructing solicitors and experienced barristers' clerks over many years. At that time, of course, a barrister could not appear in court without a solicitor (or solicitor's clerk or legal executive) to provide instructions and therefore provide feedback on his or her performance. Advocates who performed poorly in a serious or complex case were likely to be unofficially downgraded to less demanding work (on the basis that neither solicitor nor barrister's clerk would want to undermine the ultimate progress of any barrister by providing work beyond their competence). Once that competence was demonstrated, work of increasing complexity would follow. This mechanism of quality control has now been undermined as public funding does not generally provide for the presence of 'an instructing solicitor'. Having said that, however, even at Level 2, we do not accept the characterisation by the Claimants of an adverse decision as one which brings the advocate's career to an end, although it would undoubtedly be a setback (as would a poor report from an instructing solicitor)."